RIVERWATCH v. COUNTY OF SAN DIEGO DEPARTMENT OF ENVIRONMENTAL HEALTH

Filed 6/12/09 Certified for publication 7/2/09 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Michael M. Anello, Judge. Affirmed.

This appeal and the companion appeal, RiverWatch v. County of San Diego Department of Environmental Health, Case No. D048259, are the latest in the lengthy course of litigation that followed 1994 voter approval of Proposition C, an initiative which paved the way for construction and operation of a privately owned solid waste facility in northern San Diego County. (San Diego County Sample Ballot and Voter Information Pamp., Gen. Elec. (Nov. 8, 1994) Prop. C.) In the underlying action giving rise to these two appeals, plaintiffs RiverWatch, the Pala Band of Mission Indians (Pala Band), and the City of Oceanside (Oceanside) sought a writ of mandate alleging that defendants County of San Diego Department of Environmental Health and Gary Erbeck, Director of the County of San Diego Solid Waste Local Enforcement Agency, (collectively DEH), violated the California Environmental Quality Act (Pub. Res. Code,  21000 et seq.) (CEQA), Proposition C, the San Diego County general plan, and the California Code of Regulations when they approved various aspects of the landfill project. The trial court granted the petition in part and denied it in part.

In case no. D048259, RiverWatch, the Pala Band and Oceanside appealed from the portions of the January 2006 judgment that were adverse to them. We affirmed the judgment, rejecting plaintiffs' claims that the landfill project violated Proposition C and the San Diego County general plan, and that the final environmental impact report violated CEQA.^[1] In this appeal, Case No. D049216, DEH and real party in interest Gregory Canyon, Ltd. (GCL) challenge the June 2006 judgment awarding RiverWatch and the Pala Band attorney fees in the sum of $239,620 pursuant to the private attorney general doctrine set forth in Code of Civil Procedure section 1021.5 (section 1021.5).

DEH and GCL assert that the trial court abused its discretion in awarding attorney fees to RiverWatch and Pala Band under section 1021.5 because plaintiffs failed to satisfy at least two requirements for the award. Alternatively, DEH and GCL urge us to reduce the attorney fee award on grounds RiverWatch and the Pala Band had only limited success in their effort to prevent the landfill project from going forward.

We conclude there was no abuse of discretion. The litigation initiated by RiverWatch and Pala Band satisfied the requirements of section 1021.5, and the attorney fee award was consistent with the purpose of the private attorney general doctrine. The trial court presided over briefing and trial on the underlying petition, and fully understood the significance of the claims set forth in the petition. The court did, in fact, reduce the requested award for reasons it explained in detail. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Proposition C, approved by San Diego County voters in November 1994, amended the San Diego County general plan and zoning ordinance, designating an area known as Gregory Canyon for use as a landfill and recycling center. (San Diego County Sample Ballot and Voter Information Pamp., Gen. Elec. (Nov. 8, 1994) Prop. C.) Plans for the landfill project progressed slowly amid opposition. (See, e.g., Pala Band of Mission Indians v. County of San Diego (1998) 68 Cal.App.4th 556; and Pala Band of Mission Indians v. Board of Supervisors of San Diego County (1997) 54 Cal.App.4th 565.)DEH, as the lead public agency, certified a final environmental impact report in February 2003 (2003 FEIR), and issued the solid waste facilities permit approving the landfill project in June 2004. (Riverwatch v. Olivenhain Municipal Water Dist. (2009) 170 Cal.App.4th 1186, 1195.)

In July 2004, RiverWatch, Pala Band and Oceanside filed their petition for writ of mandate and complaint for declaratory and injunctive relief in San Diego Superior Court Case No. GIN038227. Plaintiffs filed a second, separate petition for writ of mandate in November 2004, after DEH approved a revised solid waste facilities permit. The court consolidated that case with Case No. GIN038227.

The first cause of action for writ of mandate was the primary focus of plaintiffs' legal action. It alleged numerous violations of CEQA under 14 subheadings. The additional causes of action for writ of mandate alleged that: (1) DEH's approval of the solid waste facilities permit violated 14 California Code of Regulations, section 18756(d), because it failed to satisfy criteria contained in the San Diego County's adopted siting element; (2) the project as approved by DEH conflicted with San Diego County's general plan and zoning ordinance; and (3) the project as approved by DEH violated Proposition C. The fifth cause of action sought an injunction prohibiting DEH and GCL from taking any further action toward development of the landfill project. The sixth and final cause of action sought a declaration that DEH's actions approving the solid waste facilities permit violated CEQA, solid waste regulations, the San Diego County general plan and zoning ordinances, and Proposition C.^[2]

In its October 3, 2005 minute order, the court granted relief as to three specific deficiencies alleged in the petition. First, the FEIR failed to address new information from a traffic needs assessment study, which revealed a drop in the level of service of State Route 76 due to tribal development projects on nearby reservations. Second, the FEIR failed to identify and consider the sources of water necessary to construct and operate the landfill -- specifically, the status and sufficiency of groundwater available under an appropriative rights permit and the contingent availability of riparian water sources. The court highlighted the failure to analyze the impacts of trucking water to the site, an option only "casually mention[ed]" in a 2004 update to the FEIR and "never studied or previously proposed." Third, the mitigation measures set forth in the FEIR were inadequate because they relied on acreage already required to be preserved under Proposition C.

The January 20, 2006, peremptory writ of mandate ordered:

"Respondents County of San Diego Department of Environmental Health and Gary Erbeck, Director of the County of San Diego Solid Waste Local Enforcement Agency shall:

"1. Set aside the February 6, 2003 decision certifying the final Environmental Impact Report ('FEIR') for the Gregory Canyon Landfill Project under the California Environmental Quality Act ('CEQA'). This decision is remanded to Respondents for reconsideration.

"2. Set aside the June 2, 2004 decision making findings in connection with its approval of the Gregory Canyon Landfill Project under CEQA. This decision is remanded to Respondents for reconsideration.

"3. Set aside the June 2, 2004 decisions approving the solid waste facility permit, Statement of Overriding Considerations, and Mitigation Monitoring and Reporting Program for the Gregory Canyon Landfill Project. These decisions are remanded to Respondents for reconsideration.

"4. Set aside the October 8, 2004 decisions approving a revised solid waste facility permit and Supplemental Statement of Overriding Considerations for the Gregory Canyon Landfill Project. These decisions are remanded to Respondents for reconsideration."

The court also granted injunctive relief, stating: "Respondents are further ordered to suspend all activity associated with approval of the Gregory Canyon Landfill Project that could result in any change or alteration to the physical environment until Respondents have reconsidered their decisions and brought those decisions into compliance with the requirements of CEQA and Proposition C." However, the court did not order DEH to "start the EIR process anew." It explained that DEH "need only correct the deficiencies in the EIR identified [in the minute order] before considering recertification of the EIR. . . . Whether the corrections require recirculation of the EIR, in whole or in part, is for Respondents to decide in the first instance in light of the legal standards governing recirculation of an EIR prior to certification." The judgment awarded petitioners RiverWatch, Pala Band and Oceanside costs of suit and attorney fees.

RiverWatch and Pala Band requested $27,340.94 in costs and $455,138.12 in attorney fees pursuant to section 1021.5. DEH and GCL opposed any award under the private attorney general theory on grounds the Pala Band had financial and personal interests in the outcome of the litigation that far exceeded any benefit to the public. As to both Pala Band and RiverWatch, they maintained that the hourly fees were unreasonable and the work duplicative. Finally, DEH and GCL argued that the requested award should be reduced by 50 percent based on plaintiffs' lack of success on numerous issues.

The trial court awarded attorney fees in the sum of $239,620. In a lengthy statement of decision, the court rejected the argument of DEH and GCL that RiverWatch and Pala Band failed to satisfy the requirements of section 1021.5, and that the attorney fee request be reduced by 50 percent to reflect unsuccessful claims. It also rejected the assertion that "the work performed by two attorneys on the same task was automatically duplicative, . . . in light of [RiverWatch's and Pala Band's] counsel's representation that the work required in this litigation was divided among the attorneys representing different petitioners." The court did, however, deduct from the total amount sought "those amounts which, in the court's view, [were] somewhat excessive for the tasks performed, including time spent on preparation of the administrative record, on the opening and reply briefs, . . . on preparation of the fee motion," and for time spent on a separate action that was ultimately dismissed. This appeal ensued.

DISCUSSION

I

THE REQUIREMENTS OF SECTION 1021.5

Section 1021.5 codifies the private attorney general doctrine adopted by the California Supreme Court in Serrano v. Priest (1977) 20 Cal.3d 25 (Serrano).^[3] (Woodland Hills Residents Assn. v. City Council of L.A. (1979) 23 Cal.3d 917, 933 (Woodland Hills).) The fundamental objective of the private attorney general doctrine is " ' "to encourage suits effectuating a strong [public] policy by awarding substantial attorney's fees . . . to those who successfully bring such suits and thereby bring about benefits to a broad class of citizens." ' [Citation.] The doctrine rests upon the recognition that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible." (Ibid.)

To obtain attorney fees under section 1021.5, the party seeking fees must show that the litigation: " ' " '(1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) [was necessary and] imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter.' [Citation.]" [Citation.]' " (Punsly v. Ho (2003) 105 Cal.App.4th 102, 109 (Punsly) ;  1021.5.) Because the statute states the criteria in the conjunctive, each must be satisfied to justify a fee award. (Id. at p. 114;  1021.5.)

The decision whether to award attorney fees under section 1021.5 rests initially with the trial court. (Baggett v. Gates (1982) 32 Cal.3d 128, 142 (Baggett).) " '[Utilizing] its traditional equitable discretion,' that court 'must realistically assess the litigation and determine, from a practical perspective' whether or not the statutory criteria have been met." (Ibid., quoting Woodland Hills, supra, 23 Cal.3d at p. 938; Punsly, supra, 105 Cal.App.4th at p. 109.)

On appeal, we review the trial court's decision for abuse of discretion. (Baggett, supra, 32 Cal.3d at pp. 142-143.) "In reviewing the trial court's decision, we must pay ' "particular attention to the trial court's stated reasons in denying or awarding fees and [see] whether it applied the proper standards of law in reaching its decision." ' [Citation.]" (Families Unafraid to Uphold Rural El Dorado County v. Bd. of Supervisors (2000) 79 Cal.App.4th 505, 512 (FUTURE).) We will not disturb the trial court's ruling absent a showing that there is no reasonable basis in the record for the award. (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 648 (Colusa); FUTURE, supra, 79 Cal.App.4th at pp. 511-512.) "Particularly in a case such as this, fully briefed and argued before the same trial court which heard (and partially granted) the petition, this is not an insignificant point." (Williams v. San Francisco Bd. of Permit Appeals (1999) 74 Cal.App.4th 961, 965.) Moreover, in examining the order on appeal, we review the trial court's actual ruling, not its reasons. We therefore will affirm an order correct in theory, even where the court's reasoning is erroneous. (Punsly, supra, 105 Cal.App.4th at p. 113, citing Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)

II

THE COST OF LITIGATION WAS DISPROPORTIONATE

TO PALA BAND'S INDIVIDUAL STAKE IN THE MATTER

DEH and GCL argue Pala Band failed to show that " 'the cost of the [its] legal victory transcend[ed] [its] personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff "out of proportion to his individual stake in the matter." [Citation.]' " (Woodland Hills, supra, 23 Cal. 3d at p. 941.) Although cases refer to this requirement as the "financial burden" criterion, nothing in the language of section 1021.5 "confines the consideration of the necessity and financial burden clause to just financial interests." (Hammond v. Agran (2002) 99 Cal.App.4th 115, 125.) "The idea is that the litigation for which fees are claimed must transcend one's interests, whether pecuniary or not." (Id. at p. 127, italics in original.) The critical question is whether advancement of the public interest " 'is merely "coincidental to the attainment of . . . personal goals" [citation] or is "self serving. . . ." [Citation.]' " (Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 181 (Bowman).) The party seeking attorney fees bears the burden of establishing that its litigation costs transcend its personal interests. (Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 247.) The trial court's application of the financial burden criterion involves a "realistic and practical comparison of the litigant's personal interest with the cost of suit." (FUTURE, supra, 79 Cal.App.4th at p. 515.)

The written briefing on the attorney fee request focused initially on whether Pala Band had a financial interest in seeking the writ of mandate. Pala Band submitted the declaration of its tribal chairman Robert Smith in support of its claim that the cost of the litigation was disproportionate to Pala Band's personal interest in the outcome. Smith stated that "[t]he Pala Band had no financial incentive or economic reason to bring this lawsuit either because the Pala Band does not foresee that, if built, the proposed landfill would economically impact the Pala casino, which is the Tribe's main source of revenue." DEH and GCL argued in response that Pala Band had a financial stake "in protecting [11,800 acres of] neighboring real property" and "450,000 square foot resort and spa" from the impacts of the landfill. Their attorney's declaration that Pala Band could lose $20 million per year in resort and casino revenues directed the court to a travel website, which listed the number of rooms and price per room. DEH and GCL also maintained that Pala Band's personal stake was "clearly evidenced by its long history of opposition to this project in every forum available to it." At the hearing on the attorney fee request, DEH and GCL cited the declarations filed by Smith and La Jolla Band tribal chairman Tracy Nelson that the construction and operation of the landfill would desecrate sacred sites, and argued for the first time that the tribe's "whole reason" for fighting the landfill was its belief "that it's going to destroy their sacred sites, Gregory Mountain, and harm their ability to engage in their religion."

TO BE CONTINUED AS PART II.

^[1] The court takes judicial notice of the record filed in case no. D048259. (Evid. Code,  452, subd. (d), 459.)

^[2] DEH and GCL assert that plaintiffs' petition alleged 60 separate claims.

^[3] Section 1021.5 provides: "Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code."